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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
M.A. CHOWDHARY, J.
Sehran Abass Sheikh, S/o. Ghulam Abass Sheikh – Petitioner
Versus
Union Territory of J.&K. Through Comm/Secretary (Home), Civil Secretariat and Ors. – Respondents
WP(Crl) No. 92 Of 2022
Decided On : 29-09-2023
Detention Order - Public Safety Act - Jammu & Kashmir Public Safety Act, 1978, Section 8(1)(a) - The court discussed the procedural requirements, the detenue's right to be communicated the grounds of detention, and the need for the detaining authority to apply its mind to draw subjective satisfaction for detention. The court emphasized the importance of strict compliance with procedural safeguards and the need to provide the detenue with the whole of the material on which the detention order is based, in a language understood by the detenue. The court also highlighted the significance of the detenue's right to make effective and meaningful representation against the detention order.
Fact of the Case:
The detenue, Sehran Nawaz Sheikh, was detained by the District Magistrate, Jammu, under the Jammu & Kashmir Public Safety Act, 1978. The detention order was challenged through a Habeas Corpus Petition, alleging violations of Article 22(5) of the Constitution of India and Section 13(1) of the Public Safety Act. The petitioner argued that the detention order was passed on imaginary grounds and in a colorable exercise of power.
Finding of the Court:
The court found that the detaining authority did not apply its mind properly while passing the detention order, and the grounds of detention were vague. It also noted that the detenue was not provided with the whole of the material on which the detention order was based, in a language he understood. The court held that the detention was illegal and unsustainable due to the failure to comply with procedural safeguards.
Issues: The issues included the validity of the detention order under the Public Safety Act, the detenue's right to be communicated the grounds of detention, and the detaining authority's application of mind in passing the detention order.
Ratio Decidendi: The court emphasized the importance of strict compliance with procedural safeguards, including providing the detenue with the whole of the material on which the detention order is based, in a language understood by the detenue. It held that failure to do so rendered the detention illegal and unsustainable.
Final Decision: The petition was allowed, and the impugned detention order was quashed. The detenue was ordered to be released from preventive custody forthwith, provided he was not required in connection with any other case(s). The detention record was returned to the learned Dy AG, and the writ petition was disposed of accordingly.
JUDGMENT :
1. District Magistrate, Jammu (hereinafter called ‘Detaining Authority’) in exercise of powers under Section 8(1) (a) of the Jammu & Kashmir Public Safety Act, 1978, passed the detention Order No. 21 of 2022 Dated 03.12.2022 (for short ‘impugned order’), in terms whereof the detenue namely Sehran Nawaz Sheikh S/O Ghulam Abbas Sheikh R/O H.No.76, Ward No.13, Malipeth Kishtwar (for short ‘detenue’) has been detained.
2. The impugned detention order has been challenged through the medium of the instant Habeas Corpus Petition, allegedly having been passed in breach of the provisions of Article 22(5) of the Constitution of India read with Section 13(1) of the Public Safety Act, 1978.
3. It has been pleaded in the petition that the detaining authority-respondent No.2 has not applied its mind properly while passing the detention order; that the detenue has been incapacitated in filing a representation as the grounds of detention are not in a language which could be understood by the detenue; that the detenue is not an English literate person and understands only Kashmiri language but the order of detention is in English and it is not possible for him to understand such a hyper technical language; and that the order of detention and the connected documents annexed with the petition clearly show violation of right of the detenue guaranteed in terms of the Article 22(5) of the Constitution of India; that neither the petitioner is threat to the public order nor he has committed any such crime which has disturbed the society at large; that the impugned detention order has been passed by the respondent detaining authority on imaginary grounds and in colorable exercise of power as grounds thereof do not indicate any such activity which fall within parameters of Public Safety Act; that grounds of detention are replica of the dossier with interplay of some words here and there.
4. Respondents in their counter affidavits have stated that the detenue was ordered to be detained for maintenance of ‘public order’ and had he been let free, there would have been every likelihood of his re-indulging in anti-national/criminal activities; that the power of preventive detention is different from punishment as the preventive detention is aimed at stopping the illegal activities of an individual, which, otherwise, under common law both criminal/civil cannot be stopped and the said individual creates a havoc in the society which leads to public disorder, disturbing peace, prosperity, tranquility, integrity and security of the UT of J&K that the petitioner tried to create communal tension and usually remained busy in illegal activities. It is being stated that the detenue is habitual of committing heinous crime and is a pawn in the hands of terror handlers operating from Pakistan in order to carry out the terror activities in Jammu which would ultimately lead to the disturbance of ‘Public Order’ and communal harmony; that the past history of the detenue and his efforts to radicalize the youths in order to enhance the terrorist activities as per the instruction of his Pak handlers, the secret verification of the detenue was also conducted through sister agencies and the report of District Special Branch Jammu reveals that the detenue is highly motivated and is in regular touch with Pak ISI and has the capacity to step up the terror activities in Jammu. It is also being stated that the petitioner is involved in numerous criminal activities, was not likely to desist from his anti-national/criminal activities which were prejudicial to the maintenance of the Public Order.’
5. Petitioner, in his rejoinder has stated that his brother, namely Tosif Nawaz was killed by Kishtwar Police and FIR No. 21/2017 dated 13.02.2017 was registered against some of the policemen for the commission of offence punishable under section 304/337 RPC and on being not satisfied with the investigation of the aforesaid FIR, the mother of the petitioner filed OWP 1962/2018 in wh
The main legal point established in the judgment is the importance of strict compliance with procedural safeguards in preventive detention cases, including providing the detenue with the whole of the....
The main legal point established in the judgment is the importance of strict compliance with procedural safeguards in preventive detention, including the right to be communicated the grounds of deten....
The judgment establishes the principle that the detention order must strictly comply with procedural requirements, and the detenue's right to understand the grounds of detention and make a meaningful....
The right to be informed of the grounds of detention in a language understood by the detenue is a fundamental constitutional right, and failure to comply with this requirement, along with the lack of....
Preventive detention – In a democracy governed by rule of law, drastic power to detain a person without trial for security of State and/or maintenance of public order, must be strictly construed.
The right to be informed of the grounds of detention and to access all materials relevant to that detention is fundamental under Article 22(5) of the Constitution, and any failure to comply with thes....
The judgment established the importance of providing necessary documents to the detenue and the grounds for preventive detention when ordinary law fails to deter criminal activities.
The detention order was invalidated due to non-application of mind, failure to provide material to the detenue, and violation of procedural requirements.
Preventive detention must comply with Article 22(5) of the Constitution, requiring clear communication of grounds and supporting material to the detenue for effective representation; failure to do so....
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